Defense wants potatoes to be evidence in Etan Patz trial

NEW YORK (AP) — A judge is considering whether 50 pounds of potatoes and a produce box can be used as evidence in the trial of a man accused of killing 6-year-old Etan Patz in 1979.

The suspect, Pedro Hernandez, said he choked Etan in the basement of a convenience store after luring the boy down the stairs with a promise of a soda. He told investigators he put the boy's body in a plastic garbage bag, then put the bag inside a banana box and walked it about a block and a half away and put it down in an alcove with other trash. The body was never recovered.

Part of Hernandez's job at the convenience store was to lug boxes of produce, soda and beer up and down the basement stairs into the shop in SoHo.

"I put it on my shoulder. I walked to the right," he said of the box during his videotaped confession. "I was strong at the time. I was 18. I was strong."

But attorneys for Hernandez, now 54, say the confession was made up and Hernandez is mentally ill. Attorney Harvey Fishbein suggests Hernandez was scrawny, weighing only about 115 pounds, and could not have carried a heavy box that far. He is asking to bring in 50 pounds of potatoes and a produce box for jurors to demonstrate the weight of the body.

On the missing-child poster, Etan's weight was listed as 50 pounds. But prosecutors say the measurement was a mistake made by frantic parents, and medical records from just a few months before Etan vanished have the boy weighing about 37 pounds. His mother, Julie, testified that he was very small for his age.

Assistant District Attorney Joan Illuzzi-Orbon argued that the method for showing how heavy the box would be is unscientific and should not be shown to jurors because it would be wrong.

"It is incompetent evidence and unscientific because carrying a body is vastly different than potatoes," she said.

It would be the second piece of unconventional evidence on whether the confession is plausible. Earlier in the trial, prosecutors showed jurors a photo of a little boy crouching in a produce box, intending to show that Etan's body would have fit into such a box. The boy is Etan's size and shape but isn't identified.

Defense attorney Alice Fontier argued that the photos were equally as unscientific.

"The people have been given free reign," she said. "We need to be allowed to introduce" the box.

The judge said he would decide Thursday.

Hernandez made the surprising confession in 2012 to authorities who were interviewing him based on a tip from a relative. No physical evidence has been recovered, but at least five people have testified that over the years, Hernandez said he had killed a child in New York City. He moved from SoHo, where he had been staying with his sister and brother-in-law shortly after Etan disappeared, to New Jersey, where he has been living ever since — most recently in Maple Shade.

Etan's parents helped galvanize the national missing-children's movement. May 25, the day he disappeared, is National Missing Children's Day.